United States v. Moser , 235 F. App'x 138 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4406
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS C. MOSER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cr-00443-RDB)
Submitted: May 9, 2007 Decided: August 10, 2007
Before TRAXLER and KING, Circuit Judges, and T. S. ELLIS, III,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Robert M. Gamburg, Philadelphia, Pennsylvania, for Appellant. Rod
J. Rosenstein, United States Attorney, Jennifer A. Wright,
Assistant United States Attorney, Andrew G. W. Norman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Moser appeals from his 2006 convictions and sentence
imposed in the District of Maryland for three offenses: (1)
traveling in interstate commerce for the purpose of engaging in a
sexual act with a minor, in violation of 18 U.S.C. § 2423(b); (2)
using the mail and interstate commerce to entice a minor to engage
in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b);
and (3) offering in interstate commerce to obtain control of a
minor, with intent to promote sexually explicit conduct by such
minor and to produce visual depictions of such conduct, in
violation of 18 U.S.C. § 2251A(b)(2)(A) (“Count Three”). Moser
presents two contentions of error in this appeal: first, that the
written statement he made to federal agents following his 2005
arrest in Maryland was involuntary and thus inadmissible; and
second, that the trial court’s instruction concerning the statutory
term “control” on Count Three constituted reversible error. As
explained below, we reject Moser’s contentions and affirm.
I.
The events leading to Moser’s arrest began on May 26, 2005,
when Postal Inspector Clayton Gerber (“Inspector Gerber”) entered
an existing Yahoo! chat room on the Internet using the assumed
identity of a woman named “Kelly Mason.” Under the screen name
“kelly_mason76,” Inspector Gerber posed as the mother of two young
2
daughters with hobbies including family time and “videos.” Not
long after he entered the chat room (whose title included the word
“incest”), Inspector Gerber received an unsolicited message from
Moser. Moser used the screen name “tomassjr6969” to communicate
with Kelly, and his accompanying profile indicated that he was a
single thirty-six-year-old man living in Pennsylvania. During this
first chat session, Kelly asserted that she had two daughters, ages
twelve and fourteen. Moser, in response, indicated that he had two
children of his own, asked Kelly if she came to the chat room
looking for some fun, and indicated an interest in making videos
with Kelly and her children.
Over the next four months, Moser and Inspector Gerber (posing
as Kelly Mason), continued to converse online. During their
conversations, Moser offered to visit Kelly’s Maryland home and
engage in a variety of sexual activities with her daughters. Moser
also asked if he could videotape the encounters and inquired
whether he could be alone with Kelly’s children during those
activities. In approximately fifteen online conversations and in
various emails, Moser related in graphic detail the sexual
activities that he wished to engage in with Kelly’s daughters.1
Moser also sent letters by mail to Kelly’s fictitious daughters,
1
In addition to the communications described above, Moser
emailed several photographs to Kelly with the request that she show
them to her daughters. These included pictures of Moser’s face as
well as his naked torso and genitalia.
3
Lisa and Jessie. In these letters, Moser described the sexual
education he planned to provide the girls and asked Lisa, the
purported fourteen-year-old, if he could be alone with her when he
came to Maryland. In his conversations with Kelly and in his
letters to Lisa and Jessie, Moser discussed bringing his own
eleven-year-old daughter with him to Maryland so that she could
also receive a “sex education.” Moser also advised Kelly that he
was accustomed to being awake at night because he often worked the
night shift.
Inspector Gerber, still posing as Kelly Mason, arranged to
meet Moser at a restaurant in Frederick, Maryland, on September 9,
2005. Moser believed he was meeting Kelly to spend the weekend
making pornographic videos with her daughters. To this end, Moser
took condoms, lubricant, video and digital cameras, and X-rated
movies to Maryland with him in his pickup truck. Moser drove
approximately three hours from northeastern Pennsylvania to
Maryland and arrived for the meeting in Frederick at about 6:45
p.m. on September 9. He was promptly arrested by the authorities
(at 6:50 p.m.), and transported to the Frederick County Law
Enforcement Center.
After being advised of his Miranda rights,2 Moser agreed to be
questioned without an attorney, and he signed a written Miranda
warning and waiver of rights form at 7:10 p.m. Inspector Gerber
2
See Miranda v. Arizona, 384 U.S. 436 (1966).
4
and federal Immigration and Customs Agent Augustus Aquino (“Agent
Aquino”) interviewed Moser until about 10:15 p.m. During this
time, Moser gave the agents an oral statement, agreed to give them
a written statement, and signed a second Miranda warning and waiver
of rights form.3 Moser completed and signed his written statement
(the “Statement”) at 3:55 a.m. on September 10, 2005.
Accordingly, from the time of his arrest until the completion
of the Statement, Moser was with the agents for nearly nine hours.
During this time, Moser was encouraged to eat and drink, he was
given breaks to compose himself, and he was allowed several trips
to the restroom. Indeed, one such break lasted approximately
thirty minutes. Although Moser asserted later that he was
emotionally drained, “very, very tired,” and not in the “right
train of thought” when he began preparing the Statement, J.A. 71-
72, Inspector Gerber and Agent Aquino both testified that Moser
never requested that the interview be terminated, never indicated
he was too tired to continue, and did not otherwise demonstrate any
reluctance to be interviewed.4
3
As noted, Moser gave oral and written statements to the
agents following his arrest. Because he has not challenged the
prosecution’s use of his oral statement at trial, we assess only
the admissibility of his written statement.
4
Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal. Citations to
“S.J.A. ___” refer to the Supplemental Joint Appendix filed herein.
5
Before writing the Statement, Moser signed the advice of
rights portion of the statement form, indicating that Inspector
Gerber had advised him of his Miranda rights at 10:15 p.m. This
portion of the form reflects that Moser understood his rights, that
he was willing to give a statement and answer questions, that he
did not desire the assistance of a lawyer, that no promises or
threats had been made to him and no pressure or coercion had been
used against him, and that he was voluntarily making the
Statement. Similarly, the form indicates that Moser had read the
Statement and that it was true and correct, that he had been given
an opportunity to make changes to it, that he had not sought the
advice or presence of a lawyer in its preparation, and that he did
not at any time request that his interview be terminated.
In the body of the Statement, Moser explains that he began
chatting with Kelly in a Yahoo! chat room at some point during the
previous year. Moser stated that during the preceding several
months, he had chatted online with Kelly once or twice a week. The
two discussed Kelly’s daughters, Lisa and Jessie, whom he believed
to be fourteen or fifteen and twelve or thirteen, respectively.
Specifically, Moser and Kelly discussed providing “safe sex
education” to the girls, which would consist of Moser engaging in
oral, vaginal, and anal intercourse with them. S.J.A. 3-4. Moser
asserted that he was planning to help Kelly with her children’s
education in the hope that he could start a relationship with her.
6
At the end of the Statement, Moser thanked the agents for arresting
him before he could make the biggest mistake of his life.
Moser was indicted by the grand jury on September 22, 2005,
and he filed a motion to suppress the Statement on October 7, 2005.
On November 21, 2005, the court conducted an evidentiary hearing on
Moser’s suppression motion and denied it from the bench. In so
ruling, the court concluded that the Statement “was voluntary, made
after the appropriate advice of Miranda warnings, and that
[Moser’s] will to make those statements was not in [any] way
overborne or his capacity for self-determination critically
impaired by any type of coercive Government conduct.” J.A. 97-98.
The court also determined that Moser was “clearly . . . advised of
his right to stop,” that he had failed to show any proof of
intimidation, and that he was not “credible [in] indicating that he
was overly pressured.” Id. at 96-97.
The Statement was introduced into evidence at Moser’s jury
trial in Baltimore. On January 9, 2006, the jury returned a guilty
verdict on all three counts of the Indictment. Thereafter, on
March 31, 2006, Moser was sentenced to a total of 360 months of
imprisonment.5 He timely noted this appeal on April 7, 2006, and
we possess jurisdiction pursuant to 28 U.S.C. § 1291.
5
Moser was sentenced to concurrent terms of imprisonment of
235 months on Count One, 235 months on Count Two, and 360 months on
Count Three.
7
II.
In assessing a district court’s ruling on a suppression
motion, “[w]e review . . . factual findings for clear error and .
. . legal determinations de novo.” United States v. Jarrett, 338
F.3d 339, 343-44 (4th Cir. 2003) (citations omitted). Accordingly,
“[i]n reviewing the denial of [a] motion to suppress, we must
accept the factual findings of the district court unless clearly
erroneous, but we review de novo the conclusion of the district
court that . . . statements were voluntary.” United States v.
Mashburn, 406 F.3d 303, 306 (4th Cir. 2005).
When an assertion of appellate error is made concerning a
trial court’s unobjected-to instruction, we review that contention
for plain error only. In so doing, we apply the principles of
United States v. Olano, assessing: (1) whether there was error;
(2) whether it was plain; and (3) whether it affected the
defendant’s substantial rights. 507 U.S. 725, 732 (1993). If
these conditions are satisfied, we may exercise our discretion to
notice the error, but only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id.(citations and internal quotation marks omitted). On plain error
review, “[i]t is the defendant rather than the Government who bears
the burden of persuasion.” Id. at 734.
8
III.
A.
The issue of whether Moser’s Statement was properly admitted
into evidence turns on whether the district court properly ruled
that he gave it to the agents voluntarily. Under the Fifth
Amendment, “[n]o person . . . shall be compelled in any criminal
case to be a witness against himself . . . without due process of
law.” U.S. Const. amend V. A statement of an accused, however, is
“involuntary under the Fifth Amendment only if it is ‘involuntary’
within the meaning of the Due Process Clause.” United States v.
Braxton, 112 F.3d 777, 780 (4th Cir. 1997) (en banc) (citing Oregon
v. Elstad, 470 U.S. 298, 304 (1985)). We assess such a
voluntariness issue by examining de novo the “totality of the
circumstances,” including the “characteristics of the defendant,
the setting of the interview, and the details of the
interrogation.” United States v. Pelton, 835 F.2d 1067, 1071 (4th
Cir. 1987) (citing United States v. Wertz, 625 F.2d 1128, 1134 (4th
Cir. 1980)). Under the totality of the circumstances, a statement
is involuntary if the accused’s will was “overborne” or his
“capacity for self-determination critically impaired.” Schneckloth
v. Bustamonte, 412 U.S. 218, 225 (1973). As the Supreme Court
observed in Colorado v. Connelly, “coercive police activity is a
necessary predicate to the finding that a confession is not
9
‘voluntary’ within the meaning of the Due Process Clause.” 479
U.S. 157, 167 (1986).
Moser contends on appeal that, when he gave the Statement, his
will was overborne and his capacity for self-determination
critically impaired due to the length of his interview, because he
ate insufficiently during it, and because he had only slept a few
hours prior to his arrest. Moser also contends that the agents
pressured him into giving the Statement by telling him that Kelly
and her daughters had already given statements. Accordingly, Moser
asserts that the district court erred in concluding that the
Statement “was voluntary, made after the appropriate advice of
Miranda warnings, and that [Moser’s] will to make those statements
was not in [any] way overborne or his capacity for self-
determination critically impaired by any type of coercive
Government conduct.” J.A. 97-98.
Under the totality of the relevant circumstances, Moser has
failed to demonstrate any coercive Government conduct. During his
interview, Moser was permitted to take numerous restroom breaks and
to compose himself, and he was encouraged to eat and drink. Moser
was not intoxicated, sick, or hurt during the interview and, under
the circumstances, its duration was not excessive. Indeed, Moser
never indicated that he was too tired to continue, and he
acknowledged that he was accustomed to being awake during the late
night hours. Importantly, it is undisputed that Moser was fully
10
advised of his Miranda rights and signed two forms spelling out his
understanding of those rights and his desire to give a statement.
Moser also maintains that he was pressured into giving his
Statement when Inspector Gerber and Agent Aquino asserted that
Kelly and her daughters had already made statements. The district
court, however, concluded that Moser was not “credible [in]
indicating that he was overly pressured.” J.A. 96-97. We are, of
course, obliged to accept the court’s findings of fact unless they
are clearly erroneous. Pelton, 835 F.2d at 1072 (citations
omitted). Under these circumstances, those facts are not clearly
erroneous, and the agents thus did not utilize any coercive
tactics, violence, improper threats, or promises to elicit Moser’s
challenged Statement. Accordingly, we reject his contention that
the Statement was made involuntarily and sustain its admission
against him at trial.
B.
Moser next contends that his conviction on Count Three is
invalid because the district court erroneously instructed the jury
on the meaning of the term “control” under the statute. See 18
U.S.C. § 2251A(b)(2).6 Specifically, Moser maintains that the
instructions erroneously conflated the element of control, on the
6
As noted above, Count Three charged Moser with “offer[ing] to
obtain control of a minor, with [the] intent to promote the
engaging in of sexually explicit conduct by such minor for the
purpose of producing visual depictions of such conduct.” J.A. 10.
11
one hand, and the element of sexual intent, on the other,
impermissibly reducing the prosecution’s burden of proof.
On Count Three, the court instructed the jury that, in order
for the prosecution to sustain its burden of proof, it was obliged
to prove six essential elements beyond a reasonable doubt. J.A.
832. This list of essential elements began: “One, that the
defendant offered to obtain control over a minor. Two, that he did
so with the intent to promote the engaging in of sexually explicit
conduct by a minor.” Id. After listing the other four essential
elements, the court also instructed the jury, in relevant part,
that “[c]ontrol means the power to manage, command, direct or
restrain another person.” Id. The court instructed the jury “that
engaging in sexually explicit conduct with a minor is in fact
obtaining control.” Id. at 833. It cautioned the jury, however,
that if “you find that the Government has not proved that the
defendant intended to engage in such conduct, then you must find
him not guilty of the charge in Count III.” Id. More
specifically, the court instructed the jury that if it found
that Mr. Moser did offer to obtain control over persons
he believed to be either a 14-year-old named Lisa Mason
or a 12-year-old named Jessie Mason as I have defined
obtaining control and that he did so with the intent to
promote the engaging in of sexually explicit conduct for
the purpose of creating a visual depiction thereof, then
you may find him guilty of the offense charged in Count
III even though he did not actually engage in sexually
explicit conduct with a minor as long as you find beyond
a reasonable doubt that the Government has proven all the
elements of the offense as I have outlined them for you.
12
Id. (emphasis added).
Moser failed to object to these instructions at trial, and we
thus assess this appellate contention for plain error only. In
reviewing for plain error, we first assess whether any error
occurred at all. Olano, 507 U.S. at 732. This assessment
implicates our decision in United States v. Buculei, where we had
the opportunity to examine the statutory term “custody or control,”
recognizing that the term is defined in 18 U.S.C. § 2256(7) as
“including temporary supervision over or responsibility for a minor
whether legally or illegally obtained.” 262 F.3d 322, 331-32 (4th
Cir. 2001). In Buculei, we observed that “control” under § 2251A
need not be synonymous with parental consent or knowledge, but
“involves something more than mere persuasion, inducement, or
coercion.” Id. at 332. There, as here, the trial court had
instructed the jury that “control” is “the power to manage,
command, direct or restrain another person.” Id. at 332 n.9. We
found no error in that instruction, and concluded that it fairly
represented the pertinent language of the relevant statute.
Because the instructions to Moser’s jury also defined “control” as
“the power to manage, command, direct or restrain another person,”
this aspect thereof was entirely proper. J.A. 832.
The district court in this case also instructed Moser’s jury,
however, “that engaging in sexually explicit conduct with a minor
is in fact obtaining control.” Id. at 833. Moser contends that
13
this aspect of the instructions renders them plainly erroneous, in
that the court conflated the element of control with the separate
element of sexual intent. Additionally, Moser asserts that,
because the evidence reflects that all involved were willing
participants, he did not offer to assume the statutorily requisite
control.
When viewed in isolation, this aspect of the instructions
arguably runs afoul of our conclusion in Buculei that “control”
involves more than mere persuasion. It is well settled, however,
that “we do not examine jury instructions in isolation.” United
States v. Ryan-Webster, 353 F.3d 353, 364 n.17 (4th Cir. 2003); see
also Jones v. United States, 527 U.S. 373, 391 (1999) (cautioning
that “instructions must be evaluated not in isolation but in the
context of the entire charge,” and noting that “instructions that
might be ambiguous in the abstract can be cured when read in
conjunction with other instructions”). Instead, “in reviewing jury
instructions, we ‘accord the district court much discretion and
will not reverse provided that the instructions, taken as a whole,
adequately state the controlling law.’” United States v. Wills,
346 F.3d 476, 492 (4th Cir. 2003) (quoting Teague v. Bakker, 35
F.3d 978, 985 (4th Cir. 1994)). Accordingly, “[o]n appeal, we
examine whether the jury instructions and verdict form, considered
as a whole, were sufficient so that the jurors understood the
issues and were not misled.” United States v. Poirier, 321 F.3d
141024, 1032 (11th Cir. 2003)(citations and internal quotation marks
omitted).
Having carefully examined as a whole the trial court’s
instructions relating to Count Three, we are unable to conclude
that they were plainly erroneous. Before giving the jury the
specific instruction that Moser complains of, the court properly
defined control as the “power to manage, command, direct or
restrain another person.” See J.A. 832; Buculei, 262 F.3d at 332
n.9. It also instructed the jury that, in order to convict on
Count Three, it was obliged to find that the prosecution had
satisfied beyond a reasonable doubt all six elements of the offense
charged. These elements included the separate elements of control
and sexual intent. The court further instructed that, in order to
find Moser guilty of Count Three, the jury had to find that he
offered to obtain control over Lisa and Jessie and that he did so
with the intent to promote the engaging in of sexually explicit
conduct for the purpose of creating a visual depiction thereof.
Viewed as a whole, the instructions on Count Three identified
control and sexual intent as two separate and distinct elements
and, accordingly, the instructions complained of were not plainly
erroneous. This appellate contention thus fails and we need not
address the other Olano factors.7
7
Even if plain error had occurred here, we would be unable to
recognize it in this case. The evidence that Moser offered to
obtain control over Lisa and Jessie was overwhelming and permitted
15
IV.
Pursuant to the foregoing, we reject Moser’s contentions of
error and affirm.
AFFIRMED
no other conclusion than that reached by the jury. See, e.g.,
United States v. Cedelle, 89 F.3d 181, 186 (4th Cir. 1996)
(concluding that when district court fails to charge jury on
element of offense of conviction, we will not notice error if
evidence would “permit no other conclusion” and defendant’s
conviction “was inevitable”).
16